Cori Hayden
is associate professor and chair of the department of Anthropology at the University of California, Berkeley, and former director of UC Berkeley’s Center for Science, Technology, Medicine and Society. She is the author of When Nature Goes Public: The Making and Unmaking of Bioprospecting in Mexico (Princeton University Press, 2003), and has written extensively on knowledge production, intellectual property, and postcolonial science studies, particularly in Latin America.

“The Same but Similar” was published as part of Triple Canopy’s Research Work project area, which receives support from the Andy Warhol Foundation for the Visual Arts, the Brown Foundation, Inc., of Houston, the Lambent Foundation Fund of Tides Foundation, and the New York City Department of Cultural Affairs in partnership with the City Council.

The Same but Similar

Anthropologist Cori Hayden speaks with Triple Canopy associate editor Matthew Shen Goodman about how corporations extract and patent indigenous knowledge under the guise of innovation, and how copycat-drug industries complicate the status of the generic and the value of the original. How do patent regimes contribute to the definition of similitude in pharmaceuticals, as well as to our understanding of the distinction between original and copy, similar and generic? If the copy threatens to precede the original in some parts of the world, what are Unilever and Novartis going to do about it?

Matthew Shen GoodmanIn your 2003 book When Nature Goes Public, you describe bioprospecting as a “new name for an old practice,” one that involves “corporate drug development based on medicinal plants, traditional knowledge, and microbes culled from ‘biodiversity-rich’ regions of the globe—most of which reside in the so-called developing nations.” Since 1992, when the United Nations passed the Convention on Biological Diversity, there has been the expectation that, in exchange for access to these resources, companies would compensate not only countries from which they extract plants and microbes but also, and especially, indigenous communities that possess valuable traditional knowledge. Have pharmaceutical companies engaged in lawful bioprospecting that follows this mandate?

Cori HaydenBioprospecting projects, which critics quickly took to calling “biopiracy,” have taken a range of forms, but many have not actually been driven or motivated by drug companies. Rather, as in the Latin America–University of Arizona contract I studied from 1993 to 2003, which was part of the US-funded International Cooperative Biodiversity Groups (ICBG) program, the main drivers were US academic institutions and public agencies. These groups funded a drug-discovery network linking local communities, chemists, and botanists in Argentina, Mexico, and Chile to US-based drug and agrochemical companies. The idea was to channel plant specimens and knowledge to participating companies in hopes that eventually a small portion of royalties from any resulting patentable drug could be converted into money for biodiversity conservation and sustainable-development projects.

ICBG agreements were very much part of the 1990s Body Shop moment, when the “rain forest” was imagined as the source of all things good, from soaps to cures for cancer. Rain forest was then a powerful symbolic term, and not always a literal one: For example, the ICBG prospecting agreement I studied took place in deserts. This commodification of the natural was imagined as reciprocal; people often claimed to be using biodiversity to “save” biodiversity itself. Bioprospecting projects like the one I studied were animated by the hope that industrial and commercial interests could save biodiversity by developing “sustainable” modes of resource extraction and commercialization. Not surprisingly, this vision ran into problems. Where indigenous and local participation was concerned, the question as to which people, or peoples, could claim to be rightful recipients of benefits was incredibly fraught. My research began right after the 1994 Zapatista rebellion in Chiapas, which had very vividly brought the issue of indigenous rights to the fore. Who should be considered the author and owner of plants and knowledge about their use, and on what basis? Territorial jurisdiction? Cultural continuity? Direct contributions to industrial innovation? The long history of colonialism, followed by modern state violence against indigenous peoples, as well as migrations from rural to urban areas all across Latin America, has in many circumstances scrambled communities’ relationships to territory. At the same time, both plants and knowledge about their use have traveled far and wide.

Shen GoodmanIt seems that in order to establish a legally viable agreement, you have to objectify—and fix in time—the relationships between these different agents and phenomena. But even the way in which a community understands its own knowledge is always changing.

HaydenFor the scientists working on this project, one way to navigate the political issues of dominion and rights was to separate plants from a people’s knowledge about their use, so as to avoid being accused of stealing privileged knowledge. The effect was to make “local knowledge” almost generic, as in: If indigenous people use it for something, then it must be good for something. Knowing that a plant is good for something is sufficient information for extraction and commercialization. This is strategic decontextualization and instrumentalization of what we might call indigenous knowledge.

Shen GoodmanAren’t plants within the public domain? How do companies negotiate their privatization of something usually considered available to all?

HaydenFor the desert project I studied, some of the participating Latin American scientists strategically attempted to avoid accusations of theft by opting not to go directly into indigenous communities to collect local plants and knowledge. Instead, they collected plants and information about their uses from sites and sources they considered within the public domain: public markets and the sides of highways. We have to remember that the public domain, as a category, is historical and contested; it’s made, not given. And the uses of the public domain can be quite different from what we, with antimonopoly sensibilities, might imagine. These researchers were trying not to run afoul of indigenous sensibilities. For some researchers and companies, the prospect of negotiating with indigenous groups was so daunting and politically complex that they shifted focus altogether from land to sea, turning instead to deep-sea microbe prospecting, for example. But scientists’ arguments that lands, knowledge, and natural resources are public and hence “belong to no one” have in many contexts—settler colonialism, privatization of common lands, etc.—been used to draw a distressing conclusion: If owned by no one, these resources are free for the taking, for modification and “improvement,” and therefore, in intellectual-property terms, available for patenting.

Shen GoodmanOur global trade agreements are built on this understanding of the public domain and the kinds of reproduction it authorizes, right?

HaydenYes, this informs the intellectual property regimes inscribed in the terms of the World Trade Organization, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the earlier General Agreement on Tariffs and Trade (GATT). In the IP regimes favored by these trade agreements, which essentially use US patent law as the standard for the rest of the world, once a compound found “in nature” (or “in public”) is isolated, purified, and stabilized—improved, from an industrial-development point of view—it can become the basis for a patent claim. One way to think of the public domain in these legal terms is that it simply describes resources available for modification.

We tend to think of the public domain as a realm in which resources belong to all and therefore cannot be exploited by any one person or entity, as a commons that is protected from private interests. But intellectual-property regimes also construct the public domain to be raw material for private appropriation.

Shen Goodman At the same time, these companies are copying traditional knowledge, which is a practice with a long precedent.

HaydenIn many cases, yes. There are major questions concerning postcolonialism and whose interventions constitute protectable innovation in IP terms. The argument can be made that the modern pharmaceutical industry is in many ways a copycat industry. It emerged in France, Germany, Britain, and the US in the nineteenth century and is based in large part on the synthesis of chemical compounds and effects found in “nature.” Morphine was isolated from opium; quinine from cinchona; salicin (a basis for aspirin) from white willow; more recently, the anticancer drug Taxol was isolated from a species of yew. Some chemists have suggested that up to 60 percent of the pharmaceuticals in common use are derived from “natural products.” The industry argues that it is making the synthetic copy better than the original by stabilizing, purifying, and standardizing compounds for mass production. It’s making a second nature, albeit one subject to IP protection.

The industry has long built, whether explicitly or not, on knowledge that others had already developed about the use of resources. The historian and science-studies scholar Abena Osseo-Asare has written about attempts in the eighteenth century by British colonial officers to cultivate strophanthus, a plant used on the Ghanaian Gold Coast as an arrow-tip poison, to develop a muscle relaxant. From the annals of bioprospecting, there are a few famous, recent examples: A form of the hoodia plant, used by the San people in South Africa as an appetite suppressant, was patented in 1997 by South Africa’s Council for Scientific Industrial Research (CSIR) for use, yes, as an appetite suppressant (the patent was later sold to Phytopharm and then to Unilever); a compound derived from the neem tree, which grows in India and has long been known to have fungicidal properties in traditional medicine, was patented by the Maryland-based chemical conglomerate W. R. Grace in 1995 as an antifungal.

Shen GoodmanCould indigenous communities file patent claims for these compounds? Would they then be obliged to prove that they’ve made novel use of these compounds, despite having interacted with these plants and animals for centuries?

HaydenIntellectual-property regimes are not equally available (or desirable) to everyone. Their priorities reflect and reproduce a particular notion of innovation, which skews toward modification by scientific means and utility in industrial and therapeutic terms. Activists have pushed back against these asymmetries by making it clear that pharmaceutical companies aren’t the only ones innovating. Indigenous peoples have been innovating for thousands of years and deserve recognition for that. They could, in this view, be considered the owners and authors of valuable information. At the very least, transnational companies should not be allowed to claim exclusive dominion over similar uses. Some bioprospecting agreements have tried to acknowledge these histories of knowledge production, though they have stopped well short of offering patents to indigenous peoples.

Shen GoodmanHave any communities successfully asserted such claims?

HaydenIn 2002, the San were able to get CSIR to promise them a percentage of royalties on the commercialization of hoodia’s appetite-suppressing ingredient, though later iterations of the product were discontinued by Unilever. Following the European Patent Office’s granting of a patent on neem to W. R. Grace, a coalition of activists in India and Europe was able to get that patent revoked in 2000 by demonstrating that the same compound had already been used in India for the same purpose prior to the patent application. In fact, there have been some very interesting moves in India throwing the terms of intellectual property right back at the transnational pharmaceutical industry. In the late 1990s, the state spearheaded the creation of a traditional-knowledge database, a vast compendium of ayurvedic knowledge meant in part as a defensive move. If a company wants to patent a compound derived from, say, the neem tree, Indian petitioners can show, in the very terms used by patent offices, that there exists prior art; in other words, that the transnational firm is doing what someone else has already done, and its invention doesn’t constitute patentable innovation. Similarly, the Indian Supreme Court recently pushed back against the reach of the transnational pharmaceutical industry’s patent claims. It ruled that Novartis’s attempt to patent Glivec, a leukemia drug based on the company’s modification of an extant drug, was simply not innovative enough to warrant a new patent. The court ruled that the modification was only minor, and thus one could say that the product was a mere copy that wasn’t substantially different in clinical terms.

Shen GoodmanThese debates still revolve around the definition of innovation, which is of course determined by national and international intellectual-property regimes. On a global level, these regimes are handed down via trade agreements like TRIPS, GATT, and, pending approval, the Trans-Pacific Partnership, which have been enacted by the wealthiest countries, whose companies profit the most from the enforcement of such regimes.

HaydenRight. We could shift the conversation by attending to what so many people know and feel intimately: IP regimes are first and foremost copy politics. Their first order of business is to regulate and restrict the circulation of copies. Instead of focusing our attention on who is being innovative, we could focus on how patent regimes regulate the conditions under which copies can legitimately be made and how they define the difference between proper and improper copy. Indeed, pharmaceutical copying practices tend to elude the terms of IP regimes.

Of course, individual nations can define these terms in opposition to prevailing international IP regimes. Argentina, for instance, has had a very strong domestic pharmaceutical industry since the 1950s, and in the mid-2000s domestic companies commanded more than 50 percent of the local market, which is unusual for any country outside the industrialized Global North. These companies sold unlicensed copies of drugs that were patented and manufactured elsewhere. The Argentine industry—which proudly calls itself a copycat industry—thrives in large part because of the legislature’s strong nationalist and protectionist orientation; when President Carlos Menem committed Argentina to the TRIPS patent regime in 1996, the government effectively made the decision not to enforce pharmaceutical patents. While there is a patent law on the books, the patent office has not actually granted many patents, and so local companies can reproduce drugs that are under patent elsewhere, getting them to the market before the so-called original is even allowed to enter the country. These drugs are called copias, and they’re often the best-known brands in Argentina.

Shen GoodmanThat Argentina’s pharmaceutical industry is centered on a form of piracy—at least in the eyes of other multinationals—makes me think of Brian Larkin’s book Signal and Noise: Media, Infrastructure and Urban Culture in Nigeria (2008), which argues that the rampant piracy of movies has engendered that country’s media infrastructure, which now openly distributes both legitimate and illegitimate copies of films. Is Argentina’s drug economy, like Nigeria’s film economy, “split between a traditional official economy oriented toward legal participation in the international division of labor and an unofficial economy, each with its own infrastructures and networks, sometimes overlapping, sometimes opposed,” to quote Larkin? Beyond their name, are copias positioned as copies in the way that they’re sold and marketed?

HaydenHere we have to unmoor ourselves from what copy points to in other contexts. Unlike the situation Larkin discusses, we are not talking about a division between official and unofficial commercial circuits. Copias are officially sanctioned drugs, and they are the backbone of Argentina’s obras sociales, the major public-private insurance programs. But the United States Trade Representative certainly calls copias pirated drugs, and in the late 1990s the Clinton Administration hit Argentina with significant trade sanctions for ostensibly violating pharmaceutical patents. But in Argentina we can think of copia as having a capital c, in the sense that the term designates, very specifically, the products made by credible labs that make up the national industry. Domestic companies give their copied drugs brand names, and they rely on these brand names to build and maintain the loyalty of customers and physicians. So it’s not that these companies and this country don’t believe in intellectual property. They believe in a strong domestic drug industry that has the right to produce its own versions of drugs under conditions that are not constrained by transnational corporations’ monopolies.

While the term copia certainly suggests that something is being copied, the drug being copied does not have original status, and frequently gets to a market after the copia. The copia, then, is not secondary but primary, and even prior to the original.

HaydenIn Argentina, copias, affordability, and access have a funny relationship. As leading brands, copias are actually comparatively expensive. In the wake of Argentina’s 2001–2 economic crash, access to medicine was one of the big crisis points. In 2003, the government tried to create a market for generic medicines as a way to bring down drug prices. This raised the question: What is a generic medicine in a context in which patents aren’t enforced and copies are actually the dominant brands? In Argentina, the status of generics is fuzzy. They are understood as copied drugs that are made by lesser-known laboratories. Perhaps we could call them copies with a lowercase c.

Shen GoodmanGenerics are usually pushed as a counterhegemonic choice—a way to fight multinationals’ stranglehold on the market—which seems like a simplistic distinction to me, especially in light of the Argentine situation.

HaydenRight, the pharmaceutical market and taxonomies in Argentina make visible all the rhetorical, epistemological, and regulatory infrastructure that has to be in place for us to divide the pharmaceutical landscape into two legitimate choices: patented, brand-name originals on the one hand and generic copies on the other. When the relation between original, copy, and patents is composed differently, the generic also becomes strange. While many Argentine consumers see generics as lesser-known copies, they also argue that, more fundamentally, the term is nonsensical; generics don’t actually exist in Argentina as a distinctive pharmaceutical commodity.

Additionally, there’s a juridical aspect to the generic. In US-style pharmaceutical-patent regimes, generic medicines are defined in part as versions of a drug that can be legally manufactured by other labs after a patent expires. They are versions of drugs that have now reverted to the public domain. As you said, we think of generics as counterhegemonic, and in the context in which we live, they are. But if there is no patent in the first place, the notion of the generic doesn’t make much sense. Like the public domain, the generic has an intimate relationship with patent regimes. It doesn’t stand outside them; it is constructed within enforced patent regimes as the proper copy—the postpatent copy, the legal copy—as opposed to the pirated copia.

So, as they say in Argentina, if there’s no patent in the first place, there are no generics per se. Argentina’s pharma landscape provides another answer to private monopoly in pharmaceuticals: Just refuse it. Instead of waiting twenty years until the drug’s patent expires to circulate legal generic copies, go ahead and make a copia now—or even “first”!

Shen GoodmanLike pirated medicines, generic medicines create their own infrastructures. I’m thinking of Mexico’s Dr. Simi chain, whose combination clinic-pharmacy business model provides a generic version not only of pharmaceuticals but also of health care.

HaydenPerhaps we can say that the politics of access to medicines is in no way generic, or configured the same way everywhere. In Mexico, medicines that are generic or otherwise copied play an important role in changes in both public and private health care. They’re not just the less expensive alternative to patented drugs, as in the US. In Mexico, an entrepreneur named Víctor González Torres opened a pharmacy chain in 1998 called Farmacias de Similares, or Similar Pharmacies, to take advantage of regulatory efforts to create a new market for generics there. The chain’s mascot is a cartoon figure named Dr. Simi, and its slogan is short and to the point: “The same but cheaper!” That phrase beautifully captures the principle of generic substitution, which is both a pharmacological principle and an economic one. You substitute one thing for another, and there’s a surplus that comes out of that exchange, which works in fascinating ways.

Shen GoodmanThat slogan seems both brilliant and worrisome. Is there a sense, or perhaps anxiety, that Dr. Simi’s copies are inferior?

HaydenThe idiom of the similar, and its commingling with “the same” in Simi’s own commercial idiom, has unleashed all kinds of rhetorical and commercial play. Is similarity a diminished form of equivalence? Are cheaper drugs inferior drugs? When Simi emerged, the transnational pharmaceutical industry began to worry that a robust generics market in Mexico would cut into its market share. They launched a counter ad campaign asking, “Do you feel better? Or do you feel similar?”

Shen GoodmanIs Dr. Simi’s business model about providing an alternative to government services in addition to drug monopolies?

HaydenYes, González Torres isn’t only taking aim at the transnational drug industry. He’s equally dismissive, and perhaps more so, of Mexico’s massive public-health-care system. Medication shortages in public pharmacies started to be reported widely around 1997 and continue to cause concern. González Torres, who often identifies as Dr. Simi, has a massive, auratic media presence. He ran for president in 2006 as a write-in candidate. Though he didn’t win the election, he, like certain other politically minded entrepreneurs with whom we’re familiar, found ways to stay in the news. In the early 2000s, one of his main targets was the director of the country’s public-health-care program, which raises the questions: What are Dr. Simi’s drugs a substitute for? What is Dr. Simi’s enterprise a substitute for? He’s not just offering a substitute for the expensive, foreign-made patented drug. In the context of some big changes in Mexico’s public-health-care sector, Dr. Simi has also set up a model of low-cost, private-sector primary care. Many of his pharmacies have clinics attached, where doctors see patients for around twenty pesos, or one US dollar.

For many who go to these pharmacies, the entire encounter is a substitute not just for expensive private clinics and foreign-made patented drugs but also for nonexistent public services. Dr. Simi has helped create a whole other domain of substitution, which goes far beyond the simple substitution of one drug for another to the marketization of public health.

Shen GoodmanAs you study these pharmaceutical practices and IP debates, do you feel the terminology that we generally use around the copy and the original leaves something to be desired?

HaydenI do think that an anthropology of pharmaceuticals can give us traction on ways of thinking about sameness, similitude, and difference, especially as these terms animate the language of original/copy but seep outside it, too. My approach is to try not to think about these terms in the abstract, but to think with them as they are grounded in particular domains and practices. I would hazard that the questions that emerge when we talk about reproducing sculptures, as opposed to copying medicines, are not exactly the same in analytic, political, ethical, or practical terms. But if we think closely through and with things that are happening in particular areas of pharmaceutical circulation today, something shifts usefully. The ways generic medicines are produced and multiply in several Latin American contexts suggest that the relations at stake are less about original versus copy and more about relations and commodities that are the same and not the same—whether at the level of drugs themselves or of entire health-care infrastructures, as in Mexico. Meanwhile, regulatory debates in Europe, India, and the US over how to properly copy biological drugs (a specific, complex class of pharmaceuticals) are churning up new universes of terms like biobetters and supergenerics, which are promoted as neither originals nor copies, but as “innovative copies.” Interchangeability, equivalence, sameness, and similarity are, in still other contexts, used less as general terms than as proper nouns, as with Dr. Simi’s powerful de facto hold on the notion of drug similarity. I think we have plenty of room here to work on retheorizing practices and representations of copying. Perhaps we’ll succeed in making commonplace notions of original and copy disappear for a moment, in order to consider what emerges in their name.